Libel in Korea and elsewhere

Truth does not offer absolute protection from prosecution, reflecting the Korean Constitution’s provision that “neither speech nor the press shall violate the honor or rights of other persons.” The burden of proof is on the defendant to prove his statement to be true and “solely in the public interest.”

“The rationale here is that even true statements are fully capable of tarnishing a person’s reputation, and if such true statements serve no public purpose, they are defamatory in nature,” said Kang Ju-won, an attorney and member of the Seoul Bar Association. “The aim is to protect the reputation of the individual unless it is outweighed by the public’s need for disclosure.”

—————Original content here————–

Below is a somewhat lengthier version of an article I wrote for Busan Haps. One of the Haps’ editors asked for it and told me I could also put it on my blog. I handed it in just over a week ago and told him I would put it up on my blog on Sept 5. Here we are but I don’t see it there.

The article was supposed to be around 800 words but, after vigorous cutting came out at about a thousand. One thing I did not include in the article was my opinion of what should or could be done. I don’t like Korea’s libel laws – or the UKs, etc- but the article was mostly a review of problems without any solutions offered.

Let me discuss my conclusions first for people who came here from the Busan Haps article Below that is the article itself.

Blacklists: Blogger McPherson tried to warn ESL job seekers about the school he worked at and was sued for his trouble. I follow McPherson’s blog and have met the man; I trust what he says and if he told me to stay away from a position, I would do it. I can’t say that for everyone though. Blacklists can become a way for crappy teachers to get back at their schools. Also, a way for crappy schools to punish teachers.

[Cazador 83 asked:] Is there a thread on this website or is there another website that lists all the hagwons that are blacklisted? I tried searching but the search function on that site isn’t so great.

[And Provence replied:] The main problem with creating a thread that blacklist hagwons in Korea is that it is illegal. I would love to warn everyone about my hagwon but I am worried they will find out it is me since I am the only foreign this school has had in 3 years. It wouldn’t be hard for them to figure out who blacklisted them. Basically they can blacklist you but you can’t blacklist them, welcome to Korea.

Marmot’s Note: One wonders how long this is going to last before it runs into legal problems. I mean, I know teachers run their own blacklists of hagwons, so what’s fair is fair, but my understanding is that in Korea, printing names like that could be problematic even if the accusations are true. The other thing is that the list is being composed by hagwon recruiters based on claims made by hagwon owners, two groups not known for their business ethics….

UPDATE 2: In our comments section, a real live lawyer says:

The blacklist is quite unlawful. Not only is it a criminal defamation violation under the Criminal Code, but the Labor Standards Act forbids employers to share blacklists. These teachers ought to complain to the prosecution.

I’m on the fence. A single blog post or newspaper article on a company or product, explaining why it is bad, a post with supporting evidence offered, seems appropriate. A wide-open list of products or companies that a similarly wide-open variety of authors dislike, for whatever reason offers less valuable information. In short, blacklists are as useful as your knowledge of the person writing the information - caveat lectorem.

Another concern I have is with people charged-but-not-yet-convicted of various crimes. At the Asian Correspondent, Nthan Schwartzman translated an article about a (Korean) teacher molesting students. At first, I wanted to know the name of the teacher especially as the parents wanted the teacher transferred. If he is transferred, I really want to know his name. Then, aware that even the suspicion of such a crime is poison, I realized that no one wants the name published until after a trial – at which point I hope they do publish it and not merely transfer the teacher.

I guess that although I do not like Korea’s libel laws, they certainly are defensible. Play differently, lose differently.

A commenter at KoreaBridge wrote: “if you have an understanding of the American Constitution, you will have heard of freedom of speech. He is quite free to write whatever he wants…”

Thinking you have the legal rights freedoms here you would have if you were elsewhere is a good way get in trouble. Indeed those legal freedoms, as relate to libel, aren’t so broad as you may think, in Korea or elsewhere. A friend who has recently returned to Canada after more than a decade here adapted quickly to local libel laws by taking a toy store to task. It appears he has since taken his post down (I think this was routine, he typically removes personal content after a week or so) but in it, he named the store and its specific location -just outside of Toronto with the recommendation that people not shop there. I believe his post contained useful information, was honest, the facts were correct and specific and was written to help other shoppers. If he posted it here in Korea, he could have faced a fine and possible deportation.Generally, a written work is libellous if it defames someone identifiable and living, is given to people other than the victim and the victim reputation or income suffers. (Libel defined. And here.) Usually, if the material is true, it is protected. Results of court cases can be described, for example. Satire can be protected…if it is blunt or obvious enough. Pubic figures, like politicians are less protected so discussions about them can be as free as possible, but media personnel and celebrities are also in this group. Opinions are protected, but as with satire, it had better be clear that you are stating an opinion.To avoid libeling someone you could use a pseudonym or avoid using a name altogether. This is NOT a free pass, however. If the person can be identified by your description, you could still be charged with libel.Why did I begin to care so much about libel that BusanHaps mistook me for an expert? Because of one apparent difference in the way libel works here: truth is not a defence in Korea. Well, that point plus the strangeness of the exceptions or loopholes that the media seems to follow.As a moderator for KoreaBridge, I needed to judge a post about a recruiter that a new poster disliked. “beware of [Korean city][district of that city][English nickname], aged XX. …doesn’t care about the teacher…JOBS SUCK!!” This post, with the raging ALL-CAPS ending, is clearly an opinion but far too descriptive of the recruiter. The owner of KoreaBridge confirmed we couldn’t accept the post as it was too specific.

Joe McPherson is a blogging acquaintance of mine who had some trouble with a hagwon he worked at. After considerable time and effort, he won a court case against them. To assist others, he blogged about his experiences and named the hagwon. Back to court for him, this time as the defendant. Read The Libel Trap at the Joongang for details.

These examples demonstrate the problem I have with Korean Libel laws. Although the first example is a little overwrought, the first two are attempts at public service announcements. These people are trying to help others avoid their mistakes. Apparently, you can’t do that here. No blacklists. Also, be careful with satire:

Michael Breen was recently sued for libel by an organization that is too big and scary for me to name. Let me throw The Marmot under the bus. Breen was also interviewed here at the Haps in April.

Professional media sources know this and tailor their articles accordingly. Investigative journalism is toothless here.

Consider the ‘Babyrose’ scandal. Babyrose, a Korean ‘power blogger’ raved about an air sterilizer and many purchased the product. Turns out, the sterilizer had some unhealthy flaws and Babyrose pocketed money from every sale. Korean news outlets had a field day. Hats off to the Korea Herald which alone of the three papers I read included the blogger’s real name, but none of the papers named the unsafe sterilizer. That would have been a good thing to know.

In June, I read a news article about three ‘bad’ universities. Again, no names were given. The Joongang attempted good investigative journalism but the attempt is useless without the names.

So we know that at least one kind of sterilizer is unsafe and there are at least three bad universities in Korea. One is in Gangwondo and another in Jeju. The malfeasant institutions are relatively unharmed, but all in their niche are suspect.

—

Updated on Sept 7, 2011: Asiaone has news of 43 universities being blacklisted. One Gangwon university is named:

Kwandong University expressed similar complaints.

“The whole school is shocked and confused,” said one official. The university is one of major four-year universities in Gangwon Province.

—

original article:

To further confuse the issue, or maybe out of fear, newspapers have at least once hidden the identity of a person I don’t feel was protected.
Back in 2007, during the problems with US beef being imported, a man, presumably a Korean cattle farmer, threw cow manure over American beef at a Lotte Mart (original here). In the photo, you can see many photographers on hand: clearly this was a PR event and journalists had been invited. Look at the man throwing the manure. If he planned this event and invited the media, why is his face – and those of the other sash-wearers- pixellated?

Another complication is described by Chris Backe. He wants to know why the Anti-English Spectrum group has not been charged with libel. The AES has stated in the past that “that foreigners engage in “sexual molestation,” and that they “target children.”” Backe wonders who and how to sue:

Who is the guilty party, though? The AES as a whole? Naver, for not shutting down a website that is against the law / their own principles? The person / people whose posts are allowed to promote a racist / xenophobic agenda? The lawmakers who go on record with the same racist / xenophobic agenda? And how has a foreigner’s reputation been damaged? Both of those things would have to be figured out before a libel case could go forward.

In politics and crime stories, everyone knows what is happening in the US – often better than they do in their own countries or in Korea. I started this article with a comment from a person who seemed to think American freedoms are defended here. That commenter should also be careful in other countries.In the UK, the reporter Simon Singh let slip the word ‘bogus’ in an article about chiropractic. He lost his first court case but eventually won.

“Simon is likely to be out of pocket by about £20,000. This – and two years of lost earnings, which he can never recover, is the price he has paid for writing an article criticising the BCA for making claims the Advertising Standards Authority has ruled can no longer be made. In the game of libel, even winning is costly and stressful.”

Indeed, the UK is known for libel tourism.“one of the favored venues for restrictive and chilling judgments is England, where libel laws are heavily weighted toward the plaintiff, placing on the defendant the entire burden of proving that a statement was not false and injurious.”In Canada, Dr Jeffery Shallit from the University of Waterloo, describes ‘libel chill’ in this article. “…if the court finds you told the truth but your intent was malicious, you might lose anyway.” At The New Republic, libel in China and Singapore is mentioned, mostly as a tool used by the government to control dissent. In the US, it does seem you are well protected from libel; at least senators are. Jon Kyl seems to be fine after claiming 90% of Planned Parenthood’s business comes from abortions. The correct number is 3%. The Colbert Report had fun with this one.

4 Responses to “Libel in Korea and elsewhere”

”
The Government will introduce a law “to protect freedom of speech and reform the law of defamation”.

…

Over the coming months, the Libel Reform Campaign will continue to fight for:

-a public interest defence so people can defend themselves unless the claimant can show they have been malicious or reckless.
-a strong test of harm that strikes out claims unless the claimant can demonstrate serious and substantial harm and they have a real prospect of vindication.
-a restriction on corporations’ ability to use the libel laws to silence criticism.
-provisions for online hosts and intermediaries, who are not authors nor traditional publishers.”

“Another organization affiliated with a municipal government in Gangwon Province was led by a university professor who doubled as chairman of its personnel affairs committee. Among 14 employees hired from 2009 through this year, nine were graduates from the professor’s university.”

What municipality? What university? What department in the municipality?…
When no names are given, all university professors who also work on government projects in Gangwon are now suspect. I wonder if a class-action libel suit could be made on their behalf.